McCaslin v. State
| Decision Date | 31 October 1905 |
| Docket Number | 5,440 |
| Citation | 75 N.E. 844,38 Ind.App. 184 |
| Parties | MCCASLIN ET AL. v. THE STATE |
| Court | Indiana Appellate Court |
Rehearing denied January 4, 1906. Transfer denied June 5 1906.
From Boone Circuit Court; S. R. Artman, Judge.
Suit by the State of Indiana against William McCaslin and another. From a decree for plaintiff, defendants appeal.
Affirmed.
Pliny W. Bartholomew, for appellant.
Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for appellee.
Appellee begun this suit against appellants in the Superior Court of Marion County by filing a complaint in three paragraphs. Thereafter the venue was changed to the Boone Circuit Court, where the case was tried before a jury, verdict returned, and judgment rendered in favor of appellee.
The first and second paragraphs of complaint are in the ordinary form, the first demanding possession of, and the second praying that appellee's title be quieted to, 100 acres of land in Marion county, Indiana. The third paragraph is to quiet title, and avers the facts in detail, upon which judgment is sought. A great number of pleadings were filed in the case, but we shall only notice those upon which a question is presented for our consideration.
(1) It has been held a number of times by the Supreme Court and this Court that only such questions as are discussed by the parties asserting error on appeal will be considered. All other questions will be deemed to have been waived. Hoover v. State (1903), 161 Ind. 348, 68 N.E. 591; Smith v. Borden (1903), 160 Ind. 223, 66 N.E. 681; Clear Creek Stone Co. v. Dearmin (1903), 160 Ind. 162, 66 N.E. 609; Franklin v. Lee (1902), 30 Ind.App. 31, 62 N.E. 78; City of Greenfield v. Johnson (1902), 30 Ind.App. 127, 65 N.E. 542.
(2) Appellant William McCaslin insists that the court erred in sustaining appellee's demurrer to the second and third paragraphs of his cross-complaint. Omitting the formal parts of the second paragraph, William McCaslin avers "that he has been the owner in open, notorious, unequivocal, continuous and execlusive possession of the real estate described as follows, to wit: [describing the real estate by metes and bounds] containing 100 acres, for the last thirty-eight years or more; that the plaintiff in this cause is claiming some interest therein, and this cross-complaint prays that his title in and to said above-described real estate be quieted, and for any and all proper relief herein." The material allegations of the third paragraph are as follows: "William McCaslin states that on or about 1860 he entered into the open, notorious, unequivocal and exclusive possession of the following described real estate, to wit: [describing the lands by metes and bounds] containing 100 acres, and as such owner his title is under a cloud, for the reason that the plaintiff herein claims to own the same as against this defendant, and he prays that his title to the same be quieted, and for all proper relief in the premises." It is apparent that in both of these paragraphs William McCaslin bases his title and right to the real estate as against appellee upon the doctrine of title by prescription or adverse possession.
Section 224, 2 R. S. 1852, p. 78, provides: "Limitation of actions shall bar the State of Indiana and the United States as other persons." This limitation continued in force until September 19, 1881, and since that time the common-law rule has prevailed, except as to sureties. § 305 Burns 1901, § 304 R. S. 1881; State, ex rel., v. Halter (1898), 149 Ind. 292, 47 N.E. 665.
While appellant William McCaslin avers in the second paragraph of his cross-complaint that he had the continuous possession of said real estate for thirty-eight years, it does not appear that he had such possession for twenty years prior to September 19, 1881, and if the rights of the State were not barred at that time, whatever rights it had then continued unaffected by appellants' possession. This paragraph was filed April 23, 1903, and under its averments we think it insufficient to show a bar as against the rights of the State, by reason of the twenty-year limitation statute.
By the averments in paragraph three, it appears that on or about the year 1860 he took exclusive possession of said real estate, but for what time or how long he continued in such possession does not appear.
In Worthley v. Burbanks (1897), 146 Ind. 534, 45 N.E. 779, it is said in the syllabus that in order to constitute adverse possession five indispensable elements must appear: In support of this rule the court cites numerous authorities.
In Peterson v. McCullough (1875), 50 Ind. 35, the court said:
Applying the cases from which we have just quoted to the facts as they appear from the allegations of the second and third paragraphs of William McCaslin's cross-complaint, we are of the opinion that neither of these paragraphs is sufficient to withstand a demurrer for want of facts, and therefore we find no error in the ruling of the trial court.
(3) Appellants contend that their motion for a venire de novo should have been sustained. Upon an examination of the record we find that on May 10, 1904, this cause was regularly submitted to a jury for trial, and on the same day the following verdict was returned: "We, the jury, find for the plaintiff." On May 11, 1904, final judgment on the verdict in favor of appellee was rendered. On May 13, appellants filed a motion...
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